Andrew Brookes, Partner
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Introduction
On 05 December 2006, it will be one year since the introduction of the Civil Partnership Act (‘CPA’) 2004. The CPA is a landmark piece of legislation that removes discrimination on grounds of sexual orientation from a number of statutes and enables same-sex couples to obtain legal recognition of their relationships. By registering their relationships, gay and lesbian couples can enjoy the same civil rights and share the same responsibilities as married heterosexual couples. Those who choose not to register but continue to live together as cohabitants are also affected by some changes brought by the CPA.
This article looks specifically into a number of new housing related rights for same sex couples contained in schedules 8 to 9 of the CPA. It does not cover every new change brought by the CPA in this area but concentrates on those housing related rights most often found in practice. These are:
1. The right to succeed to a tenancy on the death of one partner
2. The right to assign a tenancy from one partner to another
3. The right to occupy the civil partnership home
4. The right to apply for an occupation order
5. The right to apply for a non molestation order
6. The right to apply for a transfer of a tenancy order from one partner to another
1. Right to succeed to a tenancy on the death of one partner
Prior to the introduction of the CPA, the Courts had already ruled that for certain types of tenancies the surviving partner of a same sex couple could succeed the deceased tenant.
For protected tenancies (Rent Act 1977) it was held that this was possible if, at the time of the tenant’s death, the same sex partners were ‘living together as if husband and wife’. The Court found that denying a right of succession to same sex partners in those circumstances was discriminatory and incompatible with articles 8 and 14 of the European Convention of Human Rights 1950. This placed a positive duty upon the judiciary under article 3 of the Human Rights Act 1998 to try and read the provision in such a way as to make it compatible, adding words to it where possible. The word ‘if’ between the words ‘as husband and wife’ was not part of the relevant Rent Act provision . By reading the word ‘if’ into the statutory wording, the Court ruled that on the death of a protected tenant his or her surviving same sex partner, if then living in the house, becomes a statutory tenant by succession, just like a spouse does under the Rent Act.
The same principle applied in relation to assured periodic tenancies (Housing Act 1988). For secure tenancies (Housing Act 1985), the position prior to the introduction of the CPA was that the same sex surviving partner could succeed to the tenancy provided he or she had lived with the deceased tenant for at least one year before his/her death.
The introduction of the Civil Partnership Act has formalised the succession rights of civil partners and cohabiting same-sex couples by bringing them on equal footing with those of married and cohabiting heterosexual couples respectively. For the most common types of tenancies, the law of succession is now as follows:
a) Protected tenancies (Rent Act 1977)
For protected tenancies, surviving civil partners and same sex cohabitants of Rent Act tenants have the right to succeed to a statutory Rent Act tenancy . In particular:
i) Surviving civil partners no longer have to claim that they were living together with the deceased ‘as if husband and wife’. They are entitled to succeed because of their civil partnership, just as surviving heterosexual spouses are because of their marriage. They do of course need to continue occupying the civil partnership home as their only or principal home.
ii) Surviving same sex cohabitants, like their heterosexual counterparts, have to demonstrate their occupation as well their cohabitation. To succeed to a statutory tenancy, a same sex cohabitant must have been living together with the deceased as if they were civil partners. This follows from an amendment in the definition of ‘cohabitants’ in the Family Law Act (‘FLA’) 1996 which now reads ‘two persons who are neither married to each other nor civil partners of each other but are living together as husband and wife or as if they were civil partners’. What ‘living together as civil partners’ means is a factual question to be determined by taking into account all circumstances of the relationship.
b) Assured Tenancies (Housing Act 1988)
The same principles as with protected tenancies (Rent Act 1977) apply in relation to succeeding to assured periodic tenancies. The surviving same sex partner of an assured tenant can succeed to an assured periodic tenancy in the same way as a surviving opposite sex partner.
c) Secure Tenancies (Housing Act 1985)
The CPA also allows same sex partners to succeed to secure tenancies . Consequently, there is a distinction between the rights of civil partners and same sex cohabitants, equivalent to that in place for married and heterosexual cohabiting couples, as follows:
i) A civil partner of a secure tenant is entitled to succeed provided they were in occupation of the dwelling as their only or principal home at the time of the tenant’s death. They also take priority over other family members.
ii) A surviving cohabitant of a secure same sex tenant can succeed to a secure tenancy if they can show their residence, as well as that they were living together as a couple, for at least twelve months before the tenant died.
2. Right to assign a tenancy from one partner to another
There is no express provision in the CPA governing assignments of tenancies. Whether a civil partner or same sex cohabitant can assign his/her tenancy to a third party is either implied by the CPA or follows from the standard legal position governing assignments. The former is the case for instance in relation to secure tenancies; the right to assign follows from the right to succeed, which, as seen above, has been modified to include same-sex couples.
In relation to the most frequent types of tenancies, assignment rights for same sex couples are now as follows:
a) Protected tenancies (Rent Act 1977)
The position in relation to assigning protected tenancies remains unchanged by the CPA. A protected tenancy can only be assigned with the landlord’s consent. Assignment of a protected tenancy without the landlord’s consent is a ground for the landlord to claim possession.
b) Statutory tenancies (Rent Act 1977)
The CPA makes no changes in relation to statutory tenancies and assignment. Statutory tenancies cannot be assigned because only contractual tenancies are capable of assignment . A statutory tenancy does not amount to an interest in land and is therefore not in itself assignable.
c) Assured Tenancies (Housing Act 1988)
Like protected tenancies (Rent Act 1977), there is a qualified restriction in assigning an assured periodic tenancy. The restriction is in the form of an implied statutory term that an assured periodic tenancy can only be assigned with the landlord’s agreement. The CPA makes no changes.
d) Secure tenancies (Housing Act 1985)
A secure tenancy can be assigned to someone who qualifies as a successor if the tenant dies. Therefore, a same sex partner now qualifies if he or she occupies the property as his/her only or principal home and is either the tenant’s civil partner or lives with the tenant as civil partners. There is a distinction between civil partners and same sex cohabitants as to the qualifying period for assignment, similar to that for succession, as follows:
i) Civil partners are entitled to have a secure tenancy assigned to them provided they live together with the tenant immediately before the proposed assignment. They also take priority over other family members.
ii) Same sex cohabitants qualify for assignment if they can show that they have been living with the tenant as a couple for at least twelve months before the date of the proposed assignment.
3. The right to occupy the civil partnership home
Prior to the CPA, a same sex partner could only be protected from eviction from the shared home if he or she had a right of occupation by virtue of a beneficial estate or interest or contract or some special enactment granting the right to occupy. Whereas a non-owning spouse had a statutory right not to be excluded by the other from occupation of the matrimonial home without the leave of the court , a same sex partner in a similar position had no such ‘matrimonial home rights’. This meant that, in a relationship breakdown situation, a same sex partner who was not for example, an owner, tenant or contractual licensee, was in a particularly vulnerable position. He or she could not claim a right to occupy the shared home by virtue of their relationship to the other partner and their occupation of the property.
Schedule 9 of the CPA introduces those rights for civil partners by amending the relevant provisions in the Family Law Act 1996. The relevant amendment re-brands ‘matrimonial home rights’ as ‘home rights’ which are now the same for both married couples and civil partners. The new rights protect a non-owning civil partner against eviction from the civil partnership home without the leave of the court. A civil partner who has been wrongfully excluded by the owning partner from the civil partnership home may also apply for a court order re-admitting him or her to the property. Such an order can be made as part of an application within proceedings for the dissolution of the partnership or as part of a free standing application under the Family Law Act.
The new rights only apply in relation to one property at a time which must be or have been intended to be the civil partnership home. As long as the civil partnership continues both partners have the right to occupy the civil partnership home. The rights terminate on the dissolution of the civil partnership or on the death of the owning civil partner. However, a non owning civil partner may apply for the rights to be extended beyond these events, in which case the court has the discretion to order that the rights should continue.
Civil partners are also entitled to register their home rights as a charge on the dwelling so as to bind any subsequent third parties like buyers and lenders. Following the introduction of the Land Registration Act 2002 this is now notified in the form of an agreed notice.
4. Right to apply for an occupation order
Occupation orders aim to exclude the ordered party from occupation of the home and are one of the family law remedies available in dealing with situations of domestic abuse and relationship breakdown. The Court can grand an occupation order in the form of either a declaratory order or a regulatory order i.e. an injunction.
Before the CPA was introduced, the Court could grant occupation orders to same sex partners only in very strict circumstances. The Court could not treat same sex partners like heterosexual married or cohabiting couples. Instead, the right of same sex persons to apply for an occupation order was included in the right of a special category of ‘associated persons’ defined as ‘those who were living or had lived in the same household otherwise than by reason of one of them being the other’s employee, tenant, lodger or boarder’ . An associated person of that category could only apply for an occupation order provided he or she was entitled to occupy the home by virtue of a beneficial estate, or interest, or contract or statutory entitlement.
The introduction of the CPA has given to same sex partners the same application rights with regards to occupation orders as to opposite sex partners. Whether the applicant has an existing right to occupy the home, or is a former civil partner, a cohabitant or a former cohabitant of a same sex respondent will determine: -
(a) whether the proposed applicant has a right to apply for an occupation order
(b) the statutory provision under which an occupation order can be granted
(c) the provisions that can be included in an occupation order, if granted
(d) what factors the court must consider in deciding whether to grand the order or not
(e) the duration of any occupation order
Where an application is made by a civil partner, the Court has a duty to grant an occupation order if it appears to the court that the applicant or any child is likely to suffer significant harm attributable to the conduct of the respondent, which is greater that any harm likely to be suffered by the respondent . There is no such duty if the application is made by a former civil partner or a cohabitant or a former cohabitant of a same sex respondent, but the Court has the discretion to make an occupation order in those cases.
5. Right to apply for a non molestation order
The court can grant an order prohibiting the respondent civil partner from molesting the applicant ‘associated person’ or a relevant child. A molestation order can be granted to prevent violence, threats of violence, intimidation or harassment, for example ordering the molesting partner to stop making abusive telephone calls or sending pestering notes to the applicant’s home.
The amended definition by the CPA of an entitled to apply ‘associated person’ includes civil partners and former civil partners, same sex cohabitants or former same sex cohabitants, and those who have entered a civil partnership agreement to register as civil partners provided they apply for a non molestation order no later than three years after the agreement came to an end.
An associated person can make an application within any family proceedings or file a separate application under the Family Law Act 1996. The Court also has the discretion to make this order as part of any family proceedings notwithstanding the lack of a specific application on the part of the applicant.
6. Right to apply for a transfer of a tenancy order from one partner to another
Under the amendments brought by the CPA to the Family Law Act 1996, a civil partner or a former civil partner can now also apply for a transfer of the tenancy of the civil partnership home to him or her . This situation normally arises when civil partners have ceased to live together. For the right to apply the following conditions must be satisfied:
(a) The tenancy must be one with security of tenure i.e. a protected or statutory tenancy under the Rent Act 1977, a statutory tenancy under the Rent (Agriculture) Act 1976, a secure tenancy under Housing Act 1985, an assured tenancy or assured agricultural occupancy under Housing Act 1988, or an introductory tenancy under Housing Act 1996.
(b) The civil partnership home or former civil partnership home must be a dwelling house.
(c) One civil partner is the sole tenant or both civil partners hold the tenancy jointly. There can be no transfer if the tenancy is held jointly by one civil partner and a third party.
In deciding whether to order the transfer of the tenancy of the civil partnership home the Court must have regard to all circumstances including the circumstances of grant of the tenancy, the housing and financial resources of both partners and of any child and the likely effect of any transfer on them. If an order is granted, the transferor civil partner automatically replaces the transferee civil partner into all rights and liabilities arising from the tenancy .
It should be noted that, other than by a transfer of tenancy order, the Court can also transfer a contractual tenancy by way of a property adjustment order as part of proceedings for the dissolution of the civil partnership. However, a statutory tenancy (Rent Act 1977) is not capable of being transferred by a property adjustment order. A statutory tenancy is a personal right, not an interest in land. Because it is not assignable, it can only be transferred by way of a transfer of tenancy order.
Same sex cohabitants may also apply for a transfer of tenancy order. This is despite an omission on the part of the legislative draftsman of the CPA to amend the existing provision in the Family Law Act 1996 to that effect. As it stands, the current law is unsatisfactory. It states that the Court can only grand such an order to a cohabitant if ‘the cohabitants cease to live together as husband and wife’ but not ‘as civil partners’. It is expected that in determining relevant applications, the Court will seek to correct this oversight by granting such orders to qualifying same sex cohabitants who live together ‘as civil partners’. This expectation is based on a strong analogy with similar circumstances where the judiciary has accepted a duty under the human rights framework to safeguard the housing rights of same sex cohabitants in the same way as those of their heterosexual counterparts .
Former same sex cohabitants are excluded from the amended definition of ‘cohabitants’ in the Family Law Act 1996 and therefore cannot apply for a transfer of a tenancy order. However, as seen above, a same sex cohabitant whose partner has left the property and who remains in occupation may apply for an occupation order instead.
Conclusion
Housing and family law practitioners should have found no real surprises in the new housing related rights for gay and lesbian couples reviewed in this article. The purpose of amendments contained in schedules 8 to 9 of the CPA is to mirror the existing rights of heterosexual couples.
As for the likely impact of the CPA in legal practice, this remains to be seen. The Labour Force Survey suggests that there are about 50,000 cohabiting same-sex couples in the UK. Between 11,000 and 22,000 people are expected to enter into civil partnerships by 2010, increasing to between 40,000 to 80.000 by 2050. If this prediction is correct, there is likely to be an increasing amount of litigation in this area in future years.
For further information email Andrew Brookes or call 020 7940 4000.
